Considered
and decided by Peterson, Presiding Judge; Ross, Judge; and Harten, Judge.*

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

In
this appeal from an order revoking his probation and imposing an executed
prison sentence, appellant Richard Daher argues that the district court abused
its discretion in revoking his probation without sufficient evidence that the
need for confinement outweighed the policies favoring probation. We affirm.

FACTS

Following an October 15, 2003 incident in which appellant
hit another person with a tire iron, appellant was charged with one count of
second-degree assault, in violation of Minn. Stat. § 609.222, subd. 1 (2002);
and one count of third-degree assault, in violation of Minn. Stat. § 609.223,
subd. 1 (2002). On February 17, 2004,
pursuant to a plea agreement, appellant pleaded guilty to third-degree assault,
and the second-degree-assault charge was dismissed. The district court stayed imposition of
sentence and placed appellant on probation for five years. As conditions of probation, appellant was
required to perform community service, complete anger-management counseling,
and remain law-abiding.

On August 19, 2004, appellant pleaded guilty to a
fifth-degree controlled-substance charge involving the possession of
methamphetamine on August 4, 2004. The
district court stayed execution of the 13-month sentence on the drug charge on
condition that appellant serve 30 days in the county workhouse; undergo a
chemical-health assessment and follow all recommendations and aftercare;
abstain from using alcohol and non-prescription, mood-altering substances;
submit to random urinalysis and breath tests; and remain law-abiding.

After sentencing appellant for the controlled-substance
conviction, the district court held appellant’s first probation-revocation
hearing with respect to the February 17, 2004 assault conviction. Appellant admitted that he violated his
probation in the assault case by not remaining law-abiding, and the district
court ordered appellant to serve 30 days as a consequence. The district court continued appellant’s
probation in the assault case and added as a condition of probation that
appellant abstain from using all alcohol and non-prescribed, mood-altering
substances. The district court also
warned appellant that the stay of imposition would be vacated if appellant
violated the conditions of probation again.

On May 25, 2006, appellant’s probation officer
recommended to the district court that the stay of imposition be vacated based
on four allegations:

1. [Appellant]
has failed to remain law-abiding, by pleading guilty to Gross Misdemeanor-DWI,
Second Degree (DOO: 7/1/05) in HennepinCounty on 1/25/06.

2. [Appellant]
has failed to abstain from the use of alcohol on or about 5/17/06.

3. [Appellant]
has failed to report his arrest in AnokaCounty on 5/17/06 for
Felony-DWI, First Degree and Gross Misdemeanor-[Driving after Cancellation-Inimical
to Public Safety] to Probation.

4. [Appellant]
has failed to report his arrest in CrowWingCounty
on 1/1/06 for Gross Misdemeanor-[Driving after Cancellation-Inimical to Public
Safety] to Probation.

At the probation-revocation hearing, the second
allegation was amended by deleting the reference to a specific date on which
appellant failed to abstain from using alcohol, and appellant admitted all of
the allegations. The district court
found that appellant’s probation violations were intentional and inexcusable,
that appellant is a danger to public safety, that appellant had not shown
amenability to probation supervision, and that the need for incarceration
outweighed the advantages and the policies favoring probation. The district court vacated the stay of
imposition of sentence, imposed a sentence of one year and one day for the
assault conviction, and ordered that the sentence be executed. This appeal followed.

D E C I S I O N

“A
district court has broad discretion in determining if there is sufficient
evidence to revoke probation and should be reversed only if there is a clear
abuse of that discretion.” State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (quotation
omitted). “When revoking probation, the
district court must: ‘1) designate the specific condition or conditions that
were violated; 2) find that the violation was intentional or inexcusable; and
3) find that need for confinement outweighs the policies favoring probation.’” State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004) (quoting State
v. Austin, 295 N.W.2d 246, 250 (Minn.
1980)).

With
respect to the third Austin factor,
the supreme court has explained

that policy considerations may require
that probation not be revoked even though the facts may allow it and that the
purpose of probation is rehabilitation and revocation should be used only as a
last resort when treatment has failed.
When determining if revocation is appropriate, courts must balance the
probationer’s interest in freedom and the state’s interest in insuring his
rehabilitation and the public safety, and base their decisions on sound judgment
and not just their will.

Modtland,
695 N.W.2d at 606-07 (quotations omitted).

Appellant
argues that “the [district] court abused its discretion in revoking his
probation without sufficient supporting evidence that the need for confinement
outweighed the policies favoring probation.”
Appellant contends that although he failed to remain law-abiding, the
DWI conviction that he admitted concerned his alcohol abuse, not a crime of
intentional violence like the assault offense for which he was originally
placed on probation. Appellant contends
further that treatment should have been tried before confinement in prison and
because treatment was not sufficiently tried, confinement was not really
ordered as a last resort.

But
in October 2004, as a condition of probation for a controlled-substance
offense, appellant was ordered to undergo a chemical-health assessment and
follow all recommendations and aftercare.
At that time, the district court also added as a condition of probation
in appellant’s assault case that appellant abstain from using all alcohol and
non-prescribed, mood-altering substances.
Appellant did not abide by these conditions and instead intentionally
used alcohol and drove while intoxicated.
This conduct posed a threat to public safety similar to a crime of
intentional violence. In light of
appellant’s repeated violations of the conditions of his probation, the
opportunity to obtain treatment that appellant has had since being ordered in
October 2004 to undergo a chemical-health assessment, and the threat to public
safety created by appellant’s alcohol abuse, the district court did not clearly
abuse its discretion in determining that there is sufficient evidence to revoke
appellant’s probation.